Miles v. Swift , 38 Ga. App. 42 ( 1928 )

Jenkins, P. J.

1. An order overruling a demurrer to an affidavit of illegality is such a final judgment as will support a writ of error therefrom. Civil Code (1910), § 6138; Artope v. Barker, 72 Ga. 186; Chattooga County v. Glenn, 29 Ga. App. 114 (113 S. E. 704). Accordingly, the motion to dismiss the writ of error must be denied.

2. “A defendant in fi. fa. can not by affidavit of illegality set up an unliquidated demand in his favor against the judgment demand of the plaintiff in fi. fa.” Allen v. Duval Motor Co., 36 Ga. App. 336 (136 S. E. 479); Leavel v. Frey, 133 Ga. 723 (66 S. E. 916). Accordingly, the affidavit of illegality interposed by the defendant in fi. fa., by which it was sought to set up such an unliquidated claim for damages, should have been dismissed on demurrer, and the proffered amendment, setting up such additional claim, should not have been allowed over the objection of the plaintiff.

Judgment reversed.

Stephens and Bell, JJ., concur. J. B. Moore, for plaintiff. M. H. Williams, for defendant.